Tuesday, May 10, 2022

Breaking the Arc Towards Justice

Breaking the Arc Towards Justice
Nicholas Johnson
The Gazette, May 10, 2022, p. A5

I’ve never met a woman who thought an abortion was a lovely way to spend an afternoon.

Legally, overturning Roe v. Wade is not about abortion’s pros and cons, life vs. choice. It’s about the Constitution’s grants of protection from government intrusion.

It’s not about our opinions regarding abortion. As the bumper sticker has it, “Opposed to abortion? Don’t have one.” It’s whether a state can constitutionally prevent a woman and her doctor from what they believe best. Roe says “no, that’s unconstitutional.” Justice Samuel Alito says “oh, yes they can.”

This makes it possible for one to be both “opposed to abortion” (as a personal choice) while also opposed to state abortion bans (as a governmental overreach).

Besides constitutional law, Alito’s leaked draft opinion overruling Roe v. Wade raises questions about the Court.

Having spent a year as law clerk to Justice Hugo Black, I care about the Court as an institution. I’ve written here before how “politicizing an impartial Court weakens our democracy.” (“High Court Mystique is Shattered,” Feb. 16.)

The sails of the abortion debate are driven by the winds of religion and politics: the official stand of the Catholic church, before and after Roe; the Republican Party’s decades-long efforts. Six of the seven Catholic justices (including Alito) were appointed by Republican presidents G.W. Bush and Donald Trump.

Warranted or not, this multiplies the Court’s public relations challenge in regaining public trust as non-political.

The Court has become the judicial wing of the Republican Party. Alito’s draft opinion in the Dobbs case becomes the final nail in the founders’ hope for a non-political judicial branch.

The unprecedented leak of an opinion? I’m speechless. My fellow law clerks and I lived by commonsense norms. When Bob Woodward wanted to interview me about Justice Black for Bob’s “behind the scenes” book, The Brethren, I refused.

Chief Justice Earl Warren issued the only rule. We played basketball with the Court’s guards in a gym above the courtroom. (Above the Supremes, it was “the highest court in the land”). The Chief said bouncing basketballs during oral arguments was disrupting; please play at other times. We obliged.

I’m unconvinced by Justice Alito’s attempt to justify states’ abortion bans.

We’re left with dozens of questions. Here are a handful.

Will Alito’s opinion be the majority’s? Will revisions, or separate opinions matter?

Will Alito’s rationale repeal other rights? He says not, but he’s already used it in his 2015 Obergefell gay marriage dissent.

How will the decision affect the midterm elections?

If Republicans win both the House and Senate will Senator Mitch McConnell push his national abortion ban proposal? Is it constitutional?

Will Republicans provide for women, especially the poor, adversely impacted socioeconomically by abortion bans?

Will gender equality require a ban on men’s vasectomies and contraceptive purchases (overturning the 1965 Griswold case)?

Dr. Martin Luther King, Jr., asserted “the arc of the moral universe is long, but it bends toward justice.” Alito’s opinion reverses that arc -- toward its breaking point.
Nicholas Johnson is the former co-director of the Iowa Institute for Health, Behavior and Environmental Policy mailbox@nicholasjohnson.org

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Alito’s opinion. Dobbs v. Jackson Women’s Health Organization, Feb. __, 2022 (“opinion of the Court”), https://www.politico.com/news/2022/05/02/read-justice-alito-initial-abortion-opinion-overturn-roe-v-wade-pdf-00029504

Bumper sticker. From memory; and Linda Greenhouse, “Abortion Cases: A Conservative Judicial Agenda?’ New York Times, April 1, 2019, https://www.nytimes.com/2019/04/01/opinion/abortion-supreme-court-judges.html (“The best bumper sticker I’ve ever seen read: ‘Opposed to abortion? Don’t have one.’”)

Roe. Roe v. Wade, 410 U.S. 113 (1973)

Justice Black clerk & Supreme Court references. Commonsense norms. Woodward interview request. Basketball above courtroom. Chief Justice’s request. My one-year clerkship (the usual term in those days) ran from the fall of 1959 to the summer of 1960 (“the October 1959 Term”). These items are from memory.

Mystique is Shattered. Nicholas Johnson, “High Court Mystique is Shattered,” The Gazette, February 16, 2022, p. A7

Catholic Church official stand. “Catholic Church and Abortion Politics,” https://en.wikipedia.org/wiki/Catholic_Church_and_abortion_politics

Republicans use of abortion issue. Numerous sources; here’s one: M. McKeegan, “The Politics of Abortion: A Historical Perspective,” Womens Health Issues, Fall 1993, National Library of Medicine, https://pubmed.ncbi.nlm.nih.gov/8274866/

Catholic Justices. “Demographics of the Supreme Court of the United States,” 5.2 “Catholic justices,” https://en.wikipedia.org/wiki/Demographics_of_the_Supreme_Court_of_the_United_States

Impact of Alito’s Dodd opinion on other rights. In Dodd he says “no.” But in Obergefell (the gay marriage case) he said in his dissent, “’liberty’ under the Due Process Clause should be understood to protect only those rights that are ‘deeply rooted in this Nation’s history and tradition.’” Obergefell v. Hodges, 576 U.S ____ (June 26, 2015) [blank page number because not in official reports], but available elsewhere, e.g., https://www.law.cornell.edu/supremecourt/text/14-556

Ian Millhiser, “If Roe v. Wade falls, are LGBTQ rights next? Justice Alito is a staunch opponent of LGBTQ rights, but he may not have the votes to turn back the clock.,” Vox, May 6, 2022, https://www.vox.com/23058465/supreme-court-roe-wade-lgbtq-samuel-alito-marriage-equality-obergefell-lawrence

Griswold case. Griswold v. Connecticut, 381 U.S. 479 (1965)

Arc of Justice. “Dr. Martin Luther King, Jr.,” Smithsonian Institution, https://www.si.edu/spotlight/mlk (“We shall overcome because the arc of the moral universe is long but it bends toward justice,” Dr. Martin Luther King Jr., “Remaining Awake Through a Great Revolution.” Speech given at the National Cathedral, March 31, 1968.)

Sample general sources. Caroline Mala Corbin, “ 8 legal reasons to dislike Justice Alito's draft opinion on abortion; It overrules decades-old precedent to impose conservative justices’ anti-abortion views because they finally have the votes to do so,” THINK, NBC News, May 3, 2022, https://www.nbcnews.com/think/opinion/roe-v-wade-overturned-supreme-court-abortion-draft-alitos-legal-analys-rcna27205

Charlie Savage, “Draft Opinion Overturning Roe Raises a Question: Are More Precedents Next? The legal reasoning that the Supreme Court’s conservative bloc is considering to end abortion rights could uproot a series of other past rulings that created modern rights,” NYT, May 5, 2022, https://www.nytimes.com/2022/05/05/us/abortion-precedent-alito.html

Michele Bratcher Goodwin, Abortion: A Woman's Private Choice https://scholarship.law.uci.edu/faculty_scholarship/647/

Jennifer Schuessler, “The Fight Over Abortion History; The leaked draft opinion that would overturn Roe v. Wade also takes aim at its version of history, challenging decades of scholarship that argues abortion was not always a crime,” New York Times, May 4, 2022, https://www.nytimes.com/2022/05/04/arts/roe-v-wade-abortion-history.html

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